A Federal judge has reinstated two Democrats to the Privacy and Civil Liberties Oversight Board (PCLOB) after ruling on Wednesday that the president could not arbitrarily fire board members, and that the Trump administration’s attempt to do so was illegal.
Judge Reggie B. Walton of the Federal District Court for the District of Columbia said in his 71-page opinion that President Donald Trump’s firing of PCLOB members Travis LeBlanc and Edward Felten was illegal, writing that lawmakers clearly intended to shield members of the five-person board from at-will removal by the president.
LeBlanc and Felten were dismissed from the board in January by President Trump along with Sharon Bradford Franklin, whose term was set to end days later and was not named as a plaintiff in the lawsuit.
Judge Walton explained that the board was created by congressional recommendation following the Sept. 11, 2001, terrorist attacks to oversee government counterterrorism actions and policies and ensure that they don’t infringe on Americans’ civil liberties.
While Judge Walton noted that the case is complicated by the fact that Congress did not explicitly state that officials could only be removed with cause, general precedent supports that officials can’t be removed at-will, and “such unfettered authority would make the Board and its members beholden to the very authority it is supposed to oversee on behalf of Congress and the American people.”
“To hold otherwise would be to bless the President’s obvious attempt to exercise power beyond that granted to him by the Constitution and shield the Executive Branch’s counterterrorism actions from independent oversight, public scrutiny, and bipartisan congressional insight regarding those actions,” wrote Judge Walton.
Board members are granted six-year terms after being confirmed, though they are allowed to stay for up to an additional year after their terms expire.
At the time of the firings, PCLOB had only four confirmed members. The single Republican on the board, Beth Williams, was not removed alongside the other three Democrats in January. A three-person quorum of the board is required to conduct oversight.
The opinion heavily relies on Humphrey’s Executor, a landmark Supreme Court decision from 1935 that held the president cannot dismiss officials from quasi-legislative or quasi-judicial agencies except for reasons permitted by Congress. The law has been used to decide other similar cases related to removals of Federal officials from board positions by the Trump administration.
The Trump administration has previously countered that it is unconstitutional to block the president from removing officials.